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and technical correction prior to official publication in the North Carolina
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NO. COA06-1266
NORTH CAROLINA COURT OF APPEALS
Filed: 5 June 2007
JAMES MYLES,
Employee,
Plaintiff
v. North
Carolina Industrial Commission
I.C.
File No. 393009
LUCAS
AND McCOWAN
MASONRY,
Employer
THE TRAVELERS,
Carrier,
Defendants
Appeal by plaintiff from an opinion and award entered 29
June 2006 by the North Carolina Industrial Commission. Heard in the Court of Appeals 28 March 2007.
Scudder
& Hedrick, by Alice Tejada, for plaintiff-appellant.
Hedrick,
Eatman, Garnder & Kincheloe, L.L.P., by Thomas M. Morrow and Susan J.
Vanderweert, for defendant-appellees.
Per Curiam
James Myles (“plaintiff”) appeals the order of the North
Carolina Industrial Commission (“Commission”), which denied plaintiff’s request
for workers’ compensation benefits while he was incarcerated but before he was
convicted. Because we do not have
jurisdiction to hear this case, we dismiss plaintiff’s appeal.
Plaintiff presented one issue for our review: Whether the equal protection clauses of the
United States and North Carolina Constitutions allow the Commission to deny
disability benefits during an employee’s pre-conviction incarceration. Where a party appeals a constitutional issue
from the Commission and fails to file a petition for certiorari or
fails to have the question certified by the Commission, this Court is without
jurisdiction. Carolinas Medical Center
v. Employers And Carriers Listed in Exhibit A, 172 N.C. App. 549, 553, 616
S.E.2d 588, 591 (2005). In the instant
case, there is no evidence in the record that the Commission has certified the
question nor is there any evidence that a petition for certiorari was
filed. Accordingly, we are without
jurisdiction to hear this case. For the
foregoing reasons, plaintiff’s appeal is dismissed.
Dismissed.
Panel consisting of:
Judges Hunter, Tyson, and Jackson